Should we give up on ever calling a National Constitutional Convention; never try to implement reform amendments that have become so needed; watch our Constitution continue to be ever more rapidly corrupted by the ruling class, and be content with trying to nibble trivially at the edges of the ever-growing mess? Clearly there needs to be a better way to add reform amendments to the Constitution. But to be able to do so would itself require a new amendment to Article V of the Constitution. Ignoring for the moment the matter of how to get such an amendment added to the Constitution, we should consider what such an amendment might look like.
A worthy candidate might look like the following adaptation of an amendment that Mark Levin proposes in Chapter 9 of his book the Liberty Amendments, which he called “An Amendment to Grant the States Authority to Directly Amend the Constitution”, and which I call in its re-drafted form “the Amendment for Reform”. (The first two sections come from Mark Levin directly; the latter three have been re-drafted):
Section 1: The State Legislatures, whenever two-thirds shall deem it necessary, may propose Amendments to the Constitution.
Section 2: Each State Legislature proposing said Amendments must propose Amendments identical in subject and wording to the Amendments proposed by the other State Legislatures.
Section 3: A {one-month? six-month?} time limit is placed on the process of proposing an Amendment, starting from the date said Amendment is officially proposed by the first State Legislature. Each State Legislature proposing said amendment shall provide an exact copy of the proposed amendment, along with an affidavit signed and dated by the Speaker of the State Legislature, to the Archivist of the United States and the Speakers of the other State Legislatures within fifteen calendar days of its officially being proposed.
Section 4: Upon proposing an Amendment, a State Legislature may not rescind the Amendment or modify it during the {five-year?} period in which the Amendment is under consideration by the several state Legislature and the ratification process is underway.
Section 5: Once the day arrives when two thirds of the State Legislatures have proposed the identical amendment it remains for its ratification to be completed by a general plebiscite in each state of the Union within a {25-month? 50-month?} period from that day. When the total number of states that have ratified proposed the amendment equals or exceeds three fourths of the all the States the amendment is added to, and becomes part of, the Constitution.
As you can see with the Constitution amended to include this method of amending the Constitution, it will at least and at last be possible for the nation to reform its government without the government itself being its own guardian of the reforming process.
First let us consider how Sections 1 and 2 would work in a practical situation for getting a hypothetical XYZ Reform implemented that a group of people wanted to put forward. They would have to first come up with a draft a version of their XYZ reform as they envision it and then essentially shop it among the various state legislatures to see if there was sufficient interest in what they were promoting to continue going forward (and they might likely make adjustments to the draft of their proposed XYZ Reform amendment along the way). When there was a general sentiment that the time was ripe to attempt to actually amend the Constitution in accordance with the method defined above, the promoters would call an XYZ Reform Amendment Convention with the intention of establishing a final version of the XYZ Reform Amendment in such an acceptable form that at least two thirds of the nation’s state legislatures (at present 34) would in unison propose the same amendment in identical form as an amendment to the US Constitution independently for each of their own states. There are two key point to stress here. First, the XYZ Reform Amendment Convention is NOT a National Constitutional Convention authorized by Congress to either adjust or overhaul the US constitution; it is instead a preliminary convention, an enterprise by the individual federal states, narrowly focused to arrive at the XYZ Reform in acceptable and agreeable form so that the two thirds of the state legislatures can individually propose the same and identical amendment for the US Constitution. If the individual states were to attempt to do this without such a preliminary convention it would be practically impossible that they would all be able to come up with the exact same proposal, and bear in mind if there were any differences whatsoever among their various proposals it would essentially be a useless mess subject to disputes and arguments ad infinitum.
It is recommended here that the XYZ Reform Amendment Convention should be confined to delegations of a maximum of five delegates from each state so as to achieve a compromise between each state’s representation being not too small and narrow on the one hand, and a convention that is too unwieldy on the other hand.
Another implementation consideration is how the convention would work in conjunction with state legislatures. In particular since the object is to come up with a XYX Reform amendment in a form that at least two thirds of the legislatures will approve, there needs to be clear and thorough coordination between the convention delegates from each state and their respective state legislatures. One way to achieve this might be for the convention to meet on Friday, Saturday and Sunday of a given weekend, so that the delegates can then report to their respective legislatures the following week and get instructions from their legislatures for the next sub session of the convention the following weekend. Depending upon the complexity of the proposed amendment this might take three or four weekends for the process to arrive at a version that can be approved by two thirds of the state legislatures. If after some number of weekend meetings of the XYZ Reform Amendment Convention it becomes evident that the convention is deadlocked in its purpose of coming up with its intended XYZ reform in a form that is generally acceptable, then it should be adjourned until a future date when the time and circumstance may be more favorable for reconsidering the a similar XYZ Reform Amendment.
Section 3 calls for a certain amount of time for the states to officially propose the XYZ Reform Amendment. Considering that at least 34 states legislatures will have essentially pledged, according to a successful conclusion of the XYZ Reform Amendment Convention, to propose just approved form of the XYZ Reform Amendment, there should be no need for much time to elapse for the process of the various state legislatures to formally propose their individual copies of the XYZ Reform Amendment; however, exactly what is a suitable and appropriate amount of time that should be allotted to get this accomplished is something that needs to be established in the Amendment for Reform.
Section 4 is important to protect the rigorous process of proposing and ratifying a new reform amendment, which is costly in terms of both time and effort on the part of many legislatures, from being scuttled by one or more state legislatures wanting to renege on their original commitment. This time of frozen commitment needs to be long enough to allow a reasonable amount of time for a proposed reform amendment to be ratified by three fourths of the states, but it should also not an excessively long amount of time so that process of ratifying a proposed amendment that has obviously stalled can be terminated, at which point the states will be free to pursue, if they want, a different way of dealing with a situation that may still need reform, perhaps of a different form.
Section 5 is different from Mark Levin’s version of this Reform Amendment, which calls for the ratification being accomplished by the same state legislatures that originally proposed the Amendment plus whatever extra state legislatures are needed to increase the total number of approving state legislatures to at least three fourths of all of the states. The version recommended here calls for a ratification by a general plebiscite in each of the fifty states. There are two reasons for this. One reason is that this whole process is about amending the US Constitution. As We the People have established and ordained our government with the Constitution being its guiding instrument and answerable to the citizens, it seems only appropriate and right that the citizens themselves have a final say so about amending the Constitution. This is consistent with the concept of a republic. But there is another important reason for this arrangement, and that is to make the ratification process as public as possible.
Consider this: How many people know what the last amendment to the Constitution is? It is a safe bet that it is a pitiful small portion of the electorate. Having the electorate immediately involved in the changing of their constitution is not only appropriate but should also foster a salutary increase in the citizens participation in civic affairs. And speaking of the pitiful number of people, say X amount, being aware of the last Constitutional amendment, it is also a safe bet that the number of people who are aware of the process by which it came to be adopted is probably a very tiny fraction of X. And this lack of civic awareness is alarming when it is understood just what that process actually was.
Amendment XXVII states: No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of representatives shall have intervened.
This amendment was actually proposed as the original Second(!) Amendment of the original Bill of Rights, and it was originally proposed for ratification on Sept. 25, 1789 along with the rest of the Bill of Rights. However, it never succeeded in being ratified along with the ten amendments that now make up the Bill of Rights. So how did it get ratified on May 7, 1992? Its slightly complicated story is here[1], and here[2]; but the short version is that a 19-year-old college sophomore named Gregory Watson discovered in 1982 that the original Amendment II had never been fully ratified by three fourths of the states, that it had been ratified by nine states, AND there was no deadline for its ratification. Accordingly, Watson decided to make it his personal project to persuade 29 state legislatures to get it ratified. And that is exactly what he did by dint of his persistent effort. Fortunately, it was a rather innocuous accomplishment.
So, this is the point: The 27th amendment got into our Constitution without any significant public discussion at all in 200 years! And it did so as a result of only one person’s efforts pushing for it. Thank God it is fairly benign[3]. It is alright for state legislatures to pursue new amendments if they want to according to the Amendment for Reform, if and when it gets included in the Constitution. However, what they come up with may or may not be so good for the republic at large; but that having been done outside of the spotlight of Washington, DC, it is important that the ratification process receives the full attention of the general public. For example, some leftists hate our Constitution and wish to be rid of it; many want to do away with the Second Amendments entirely, and quite a few want to eliminate or severely curtail all or at least parts of the First Amendment. Some may think such a possibility is preposterous; but before dismissing the possibility that either such event could ever occur, bear in mind that a few thousand dedicated conspiratorial ideologues up-ended the 2020 Presidential election, got away with it, and are mighty proud of it to boot. And the fact that such subterfuge has been done once is more than enough precedent for it being done again; and the next time it may do much more damage than the overturning of an election with wholesale election fraud, which in itself has indirectly resulted in, among various tragedies, the incredibly disastrous American capitulation in Afghanistan with its myriad calamitous ramifications for America’s foreign policy all over the world. This highlights that it is a very real concern that, if the Amendment for Reform is not drafted with sufficient care, it could be used to demolish our rights or even our frail and failing Constitution. (In fact, during the past two years of the COVID-19 pandemic, recently we have even seen that this is to some extent possible even without the Amendment to Reform.) By making ratification dependent upon a general plebiscite in each state of the Union as stipulated Section 5, that should go a long way to prevent any changes that the electorate does not want. Accordingly, the Amendment should be structured so as to make it as difficult as possible to enable subterfuge by some kind skullduggery in the dark of the night, but at the same time to make it finally possible to reform the Constitution in way that is genuinely needed for the preservation of the Republic.
This is also why a substantial, but not excessive, amount of time is allotted for the public plebiscite process to take place. Thirty months should be enough time to ensure that the ratification time is long enough to include at least one bi-annual election cycle plus additional time to prepare the XYZ Reform Amendment question to be incorporated into the ballot; fifty months is long enough to ensure the occurrence of at least one Presidential election and a Congressional election, not to mention state elections.
2 https://constitutioncenter.org/interactive-constitution/interpretation/amendment-xxvii/interps/165
3 (I think I heard back in 2008 or 9 – but a search of the Internet failed to turn up any verification -- that technically Hillary Clinton violated Amendment XXVII by when she essentially demanded to be Obama’s Secretary of State shortly after she, as Senator from New York, had voted for salary increases for various offices including Secretary of State. Considering how many issues she was dealing with, this particular issue drew practically no attention at all, partly because within the Media there was no one who cared anyway, and especially about Amendment XXVII, which essentially snuck into the Constitution in the first place.)
There is a weakness here:
Say the legislature of a rogue state (Massachusetts?} anticipates that a large number of want to propose a some kind of a reform amendment and decides to prematurely initiate process of proposing such an amendment with a version that is deliberately flawed.
There needs to be a safeguard against that.
